Appeals court rules for former immigrant denied job as state prison guard

A formerly undocumented immigrant, whose application to work as a California prison guard was wrongly denied because he disclosed he had once used a false Social Security number to get a job, can seek damages for emotional distress, a state appeals court ruled Wednesday.

Victor Guerrero had won an earlier ruling from a federal judge, who said state prison officials had discriminated against him based on his national origin by using his answer to disqualify him. After a nonjury trial in 2016, U.S. District Judge William Alsup of San Francisco awarded Guerrero $140,000 in lost pay and $1.4 million in attorneys’ fees and costs.

He also ordered the state to reconsider Guerrero’s job application. He was accepted and has worked as a guard at a Central Valley prison for 2½ years, his lawyer said.

Guerrero also sought damages under California law for the emotional harm caused by the rejection of his application, a claim Alsup could not consider. He filed a separate suit in San Francisco Superior Court, but Judge Curtis Karnow dismissed it, saying it duplicated Guerrero’s federal case and he was not entitled to seek additional damages. The First District Court of Appeal in San Francisco disagreed Wednesday and reinstated the suit.

When someone with a grievance against the state sues in federal court, the Constitution shields the state from damages based on violations of its own laws, Justice Jon Streeter said in the 3-0 ruling. Guerrero’s Superior Court suit did not duplicate his federal court suit, and he “is free to pursue his state claims for damages in Superior Court,” Streeter said.

Guerrero was brought to the United States from Mexico by his parents in 1990 at age 11. Needing a job at age 15 to help pay the family’s bills, he was taken to a service that provided fake Social Security numbers. He did not know for several years that the number was fictitious and that he was undocumented, said attorney Christopher Ho of the nonprofit Legal Aid at Work, which represents Guerrero. He continued to use the fake number until 2007, when he was a legal resident and obtained a legitimate Social Security number.

Guerrero became a U.S. citizen in 2011 and then applied to work for the state as a prison guard. He passed the written and physical exams but was disqualified after saying, in response to a question on the Department of Corrections and Rehabilitation’s standard form, that he had once used a different Social Security number.

In the trial of Guerrero’s federal lawsuit, Alsup said the department had discriminated against Guerrero by using his answer to disqualify him, rather than considering his overall qualification. But he refused to order the state to remove the question from its questionnaire, saying the department had a legitimate interest in its applicants’ honesty and good judgment.

Judges have reached different conclusions on whether victims of discrimination like Guerrero can seek additional damages, said Ho, Guerrero’s lawyer, and Wednesday’s ruling provides “great guidance for future courts.” Ho said the department had used the same answer to reject nine applicants, all of them Latino, over a period of several years.

Bob Egelko has been a reporter since June 1970. He spent 30 years with the Associated Press, covering news, politics and occasionally sports in Los Angeles, San Diego and Sacramento, and legal affairs in San Francisco from 1984 onward. He worked for the San Francisco Examiner for five months in 2000, then joined The Chronicle in November 2000.

His beat includes state and federal courts in California, the Supreme Court and the State Bar. He has a law degree from McGeorge School of Law in Sacramento and is a member of the bar. Coverage has included the passage of Proposition 13 in 1978, the appointment of Rose Bird to the state Supreme Court and her removal by the voters, the death penalty in California and the battles over gay rights and same-sex marriage.